Citation Nr: 0903007
Decision Date: 01/28/09 Archive Date: 02/09/09
DOCKET NO. 97-23 075 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUES
1. Whether a timely appeal was submitted with respect to a
decision of December 1999 which assigned an initial rating
for a service-connected left knee disorder.
2. Entitlement to an initial rating higher than 20 percent
for thoracic spine fracture residuals.
3. Entitlement to a higher initial rating for cervical spine
injury residuals, rated as noncompensable prior to January
30, 2003, and rated as 10 percent thereafter.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael Martin, Counsel
INTRODUCTION
The veteran had active service from July 1993 to April 1996.
This matter initially came before the Board of Veterans'
Appeals (Board) from a July 1996 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Winston-Salem, North Carolina which, among other things,
granted service connection for thoracic spine injury
residuals, rated noncompensably disabling. The RO also
denied service connection for neck injury residuals. After
the veteran testified at an August 1997 RO hearing, the RO
granted service connection for cervical spine injury
residuals, rated noncompensable, and increased the rating of
the thoracic spine injury residuals to 20 percent, effective
April 16, 1996, the date of the claim.
After the veteran testified at a July 1999 Central Office
hearing, the Board in November 1999 and November 2003
remanded the claims. In October 2006, the Board granted a
claim for an earlier effective date for a 30 percent rating
for migraine headaches, and again remanded the remaining
claims.
In accordance with the remand instructions, the RO issued a
statement of the case in January 2007 which pertained to the
issue of entitlement to a higher initial rating for a left
knee injury. The RO also issued a supplemental statement of
the case for the spine rating issues. The case has now been
returned to the Board for further appellate review.
FINDINGS OF FACT
1. A decision granted service connection for a left knee
disorder in December 1999, and assigned an initial disability
rating. A notification letter explained the decision, and an
enclosure sent with that letter advised the veteran of his
appellate rights.
2. The veteran expressed disagreement with the determination
in a document received on February 24, 2000.
3. On January 9, 2007, the RO issued a statement of the case
which addressed the knee rating issue.
4. The veteran has not submitted a substantive appeal
statement which pertains to the knee rating issue.
5. The thoracic spine fracture residuals have not resulted
in unfavorable ankylosis, intervertebral disc syndrome, or
limitation of motion with forward flexion of the
thoracolumbar spine 30 degrees or less; or, favorable
ankylosis of the entire thoracolumbar spine.
6. During the period prior to January 30, 2003, the cervical
spine injury residuals did not result in limitation of
motion.
7. During the period from January 30, 2003, the cervical
spine injury residuals have not resulted in limitation of
motion which is more than slight in degree, or limitation of
forward flexion of the cervical spine to 30 degrees or less.
CONCLUSIONS OF LAW
1. The veteran did not submit a timely appeal of the
decision of December 1999 which assigned the initial rating
for his left knee disorder. 38 C.F.R. §§ 20.202, 20.302
(2008).
2. The criteria for a disability rating higher than 20
percent for thoracic spine fracture residuals are not met.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45,
4.59, 4.71a, Diagnostic Codes 5003, 5288, 5291 (2003),
effective prior to September 26, 2003; 68 Fed. Reg. 51,454,
51,456-57; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.10, 4.14, 4.40,
4.45, 4.71a, Diagnostic Codes 5235-5243 (2008), effective
September 26, 2003.
3. The criteria for a compensable disability rating for the
period prior to January 30, 2003, or a disability rating
higher than 10 percent for the period from that date for
cervical spine injury residuals are not met. 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a,
Diagnostic Codes 5003, 5287, 5290 (2003), effective prior to
September 26, 2003; 68 Fed. Reg. 51,454, 51,456-57; 38 C.F.R.
§§ 3.102, 3.159, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a,
Diagnostic Codes 5235-5243 (2008), effective September 26,
2003.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Preliminary Matter: Duties to Notify and Assist
Initially, the Board finds that the content requirements of a
duty to assist notice have been fully satisfied. See 38
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Letters from the
RO dated in February 2001, August 2001, December 2001, March
2005, November 2006 provided the veteran with an explanation
of the type of evidence necessary to substantiate his claims,
as well as an explanation of what evidence was to be provided
by him and what evidence the VA would attempt to obtain on
his behalf. The veteran's initial duty-to-assist letter was
not provided before the adjudication of his claims. However,
after he was provided the letters, he was given a full
opportunity to submit evidence, and his claims were
subsequently readjudicated. In addition, the Board notes
that the veteran's claims arise from his disagreement with
the initial evaluation following the grant of service
connection. Courts have held that once service connection is
granted the claim is substantiated, additional notice is not
required and any defect in the notice is not prejudicial.
Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap
v. Nicholson, 21 Vet. App. 112 (2007). The VA has no
outstanding duty to inform the veteran that any additional
information or evidence is needed. The Board concludes,
therefore, that the appeal may be adjudicated without a
remand for further notification.
The Board also finds that all relevant facts have been
properly developed, and that all evidence necessary for
equitable resolution of the issues has been obtained. The
veteran was afforded VA examinations. VA and private medical
records were obtained and associated with the claims folder.
The veteran had a hearing before the Board in July 1999.
Although that Board Member has since retired, the veteran
declined an opportunity to have another hearing. The Board
does not know of any additional relevant evidence that has
not been obtained. For the foregoing reasons, the Board
concludes that all reasonable efforts were made by the VA to
obtain evidence necessary to substantiate the veteran's
claim. Therefore, no further assistance to the veteran with
the development of evidence is required.
I. Whether A Timely Appeal Was Submitted With Respect To A
Decision Of
December 1999 Which Assigned An Initial Rating For A
Service-Connected Left Knee Disorder.
The formality of perfecting an appeal to the Board is part of
a clear and unambiguous statutory and regulatory scheme which
requires the filing of both a notice of disagreement (NOD)
and a formal appeal. See Roy v. Brown, 5 Vet. App. 554
(1993). Appellate review of an RO decision is initiated by
an NOD and completed by a substantive appeal after a
statement of the case (SOC) is furnished. 38 U.S.C.A.
§ 7105(a); 38 C.F.R. § 20.200.
After an appellant receives the SOC, he or she must file a
formal appeal within sixty days from the date the SOC is
mailed or within the remainder of the one-year period from
the date the notification of the RO decision was mailed,
whichever period ends later. 38 U.S.C.A. § 7105(d)(3); 38
C.F.R. § 20.302(b); see Rowell v. Principi, 4 Vet. App. 9, 17
(1993); Cuevas v. Principi, 3 Vet. App. 542, 546 (1992)
(where claimant did not perfect appeal by timely filing
substantive appeal, RO rating decision became final). By
regulation, this formal appeal must consist of either a VA
Form 9, or correspondence containing the necessary
information. 38 C.F.R. § 20.202.
The formal appeal permits the appellant to present specific
arguments relating to errors of fact or law made by the RO.
38 U.S.C.A. § 7105(d)(3); Roy v. Brown, 5 Vet. App. 554, 555
(1993). Upon request, the time period for filing a
substantive appeal may be extended for a reasonable period
for good cause shown. 38 U.S.C.A. § 7105(d)(3). A request
for such an extension should be in writing and must be made
prior to the expiration of the time limit for filing the
Substantive Appeal. 38 C.F.R. § 20.303.
Here, a December 1999 decision granted the veteran's claim
for service connection for a left knee disorder, and assigned
the initial disability rating. A letter dated in December
1999 notified the veteran of the decision, and an enclosure
sent with that letter advised him of his appellate rights.
The veteran expressed disagreement with that determination in
a document received on February 24, 2000. In response to a
Board remand, the RO issued a statement of the case which
addressed the claim on January 9, 2007. Thus, the issuance
of the statement of the case in January 2007 marked the
beginning of the 60 day period in which the veteran was
required to submit his substantive appeal.
The veteran did not submit a VA Form 1-9 (Appeal to the Board
of Veterans' Appeals) within 60 days from the issuance of the
January 9, 2007 statement of the case. In fact, he has never
submitted such a document since that SOC. He also did not
request an extension of time for filing that document.
The Board wrote to the veteran in November 2008 and advised
him that the timeliness of an appeal would be considered, and
he was afforded an opportunity to submit evidence and/or
argument. No response was received.
The Board finds that there was no evidence of physical or
mental impairment due to illness which prevented the veteran
from complying with the time limit. The Board further notes
that the filing of a substantive appeal form is not a
physically challenging task, and would not be physically
taxing. For these reasons, the Board finds that the veteran
was not prevented from filing his substantive appeal within
the time limit by either mental or physical disability. Good
cause for failing to meet the time limit has not been shown.
See 38 C.F.R. §§ 3.109, 20.303. Accordingly, the Board finds
that the veteran did not submit a timely appeal of the
decision of December 1999, which assigned the initial rating
for a left knee disorder.
II. Entitlement To An Initial Rating Higher Than 20 Percent
For
Thoracic Spine Fracture Residuals.
The Board has considered the full history of the veteran's
service-connected disabilities. The Board will summarize the
evidence pertaining to both the cervical spine and the
thoracic spine together, as many of the items of evidence
pertain to both disabilities. The veteran's service medical
records show that he was seen on a number of occasions for
complaints of back pain. A service record dated in October
1995 noted that the veteran reported that his back pain began
in March 1994 after a bad parachute landing/fall. Physical
examination showed a mild thoracic kyphosis at T7-9. Mild
paravertebral muscle spasm was present. No limited motion
was seen. A physical evaluation board determined in February
1996 that he had upper back pain with degenerative joint
disease at T7-10, wedging at T7 and T8 and kyphosis. The
physical evaluation board recommended a 10 percent disability
rating. Separation from service was recommended.
In May 1996, the veteran filed a claim for disability
compensation for disabilities including back and neck injury
residuals. In a rating decision dated in July 1996, the RO
granted service connection for degenerative joint disease of
the cervical spine T7-T8 and kyphosis, rated as
noncompensably disabling. The veteran subsequently perfected
an appeal. In a rating decision of September 1997, the RO
granted a 20 percent rating for residuals of compression
fracture of the thoracic spine, and assigned a noncompensable
rating for residuals of a cervical spine injury. In January
2007, the RO increased the rating for the cervical spine
disorder to 10 percent disabling effective from January 30,
2003, as clarified in the SSOC of December 2006.
The relevant evidence includes the report of a general
medical examination conducted by the VA in May 1996 which
reflects that the veteran reported sustaining injuries to his
back during two separate parachute jumps. He also reported
an injury to his neck after a jump in the summer of 1994. On
physical examination, the range of motion and flexibility of
the back and cervical spine were within normal limits.
However, the veteran did have very mild dorsal kyphosis in
the region of the T8/9 level. The pertinent diagnosis was
history of injuries to the thoracic and cervical spine with
questionable slight dorsal kyphosis in the mid thoracic
spine. Otherwise examination of the cervical spine and
lumbar spine showed normal flexibility. An X-ray of the
thoracic spine was interpreted as showing no fractures, bone
destructions, or other abnormalities. An X-ray of the
cervical spine was described as normal.
The report of a neurology examination conducted by the VA in
May 1996 reflects that the examiner concluded that the
veteran had an impressive history of back, leg, and knee
injuries, but the nervous system had not been significantly
damaged.
A report from a private chiropractor dated in August 1996
reflects that he concluded that the veteran was suffering
from a moderate to severe whiplash injury, and a T8
compression fracture with associated increased kyphosis of
the thoracic spine.
The veteran was afforded a VA spine examination in February
1997. On examination of the thoracic spine, there were no
obvious postural abnormalities or fixed deformity. There was
no spasm. The range of motion of the cervical spine and
thoracic spine were completely within normal limits. The
examiner stated that the veteran did not have an obvious
kyphosis on exam, and there was no objective evidence of pain
on motion of the thoracic spine. Upper extremities strength
was 5/5. Deep tendon reflexes were normo-reactive. Gross
sensation was present. There were no signs of radiculopathy
of the upper extremities even though the veteran gave a
history of having tingling down his left arm. X-rays did not
show evidence of degenerative joint disease or disc disease.
The diagnosis was history of compression fracture of T7-8
with slight scoliosis but without DJD or DDD.
The report of another VA examination also conducted in
February 1997 reflects that the veteran's deep tendon
reflexes were diminished throughout, but symmetrical. Motor
examination showed 5/5 strength in all extremities with no
change in tone or mass. Sensory exam was intact to vibration
throughout. Pinprick was symmetrical and normal in all
extremities.
The veteran testified at a hearing held at the RO in August
1997. He reported having continuing pain in his back and
neck since service. He also reported having twinges of pain
in his arms such as when he reaches for something. He also
reported that sometimes when he reached over to pick
something up, his back locked up. Finally, he described
having numbness in his extremities, especially the left. The
veteran subsequently presented similar testimony at a hearing
held before a Board Member in July 1999. He reported having
"a sore kind of an ache" all the time. He said that at
times it felt like somebody was stabbing him. He reported
that he could no longer do activities such as mowing his
mother's lawn. He also reported that staying in the same
position for an extended time bothered his back. Regarding
the cervical spine, the veteran stated that he thought that
he had a full range of motion, but that looking back over his
shoulder bothered his neck.
The veteran was afforded a QTC examination on behalf of the
VA in May 2000. On examination, straight leg raising was to
90 degrees, and lateral spine bending was to 20 degrees.
Strength was 5/5. Reflexes were 1 and symmetric. Sensory
exam was intact to pin, position, vibration, and touch. The
pertinent diagnoses include back injury with compression
fracture being treated by orthopedics, and neurologic
examination showed no focal neurologic deficit.
The report of a QTC orthopedic examination conducted in May
2000 reflects that the veteran reported that he worked on
computers and that prolonged sitting tended to aggravate his
mid back. He said that he could no longer jog due to the
fact that it flared up the back pain. However, he denied any
radicular pain in the lower extremities. On physical
examination, his cervical spine had a full, painless range of
motion with no evidence of muscle spasm or tenderness.
Neurologic examination in the upper extremities showed no
evidence of motor or sensory deficits. He appeared to have a
mild mid thoracic kyphosis deformity and experienced some
apparent discomfort on palpation about the mid thoracic
spine. The lumbar spine and a full range of motion with no
tenderness or evidence of muscle spasm. Straight leg raising
was negative, and reflexes were active and equal. The
examiner could not detect any motor or sensory loss in the
lower extremities. He had good muscle development in the
upper and lower extremities. The examiner reported that x-
rays showed mild anterior wedge deformities. The impression
was healed, mid thoracic, compression fractures. The
examiner stated that such a compression fracture would be
expected to heal completely, but this veteran had some
residual discomfort which may affect an occupation requiring
prolonged bending, stooping or lifting. However, it would
appear that it minimally affected his present occupation.
The examiner further state that he would not expect it to
affect him appreciably in usual daily activities excluding
strenuous sports activities.
The evidence also includes numerous VA treatment records
pertaining to complaints of back and neck pain. For example,
a VA record dated in February 2000 reflects that examination
of the low and mid back showed minimal but definite spasms.
Sensation and motor strength were intact. The pertinent
impression was chronic pain syndrome secondary to injury to
the cervical and thoracic and lumbar spine in a military
accident.
A VA record dated in October 2001 reflects a consultation for
back pain. He reportedly had constant back pain in the mid
dorsal area radiating to the lumbar and cervical areas. He
reported that he could sometimes move furniture but
occasionally got spasm which locked him up for 10 to 15
minutes, and he may have to lie down for relief. There
reportedly was no radiation of pain or paresthesias into the
arms and legs. It was stated that on examination, he
transferred easily and walked normally. Heel and toe walking
was okay. Spines showed normal posture and flexing brought
the fingertips to near the ankles without apparent pain. No
muscle spasm or list was evident. The impression was back
pain, probably mechanical in origin.
The veteran was afforded another VA examination in January
2003. Examination of the cervical spine showed an absence of
radiation of pain on movement. He had paravertebral muscle
spasm and tenderness in the C-spine. Flexion was to 65
degrees, extension was to 40 degrees with pain between 30 to
40. There was some stiffness, and he had fatigue and lack of
endurance in his neck. There was no ankylosis of the
cervical spine. On examination of the thoracic spine, muscle
spasm was present. There were no signs of radiculopathy.
His thoracic spine was stiff. Flexion was to 75 degrees, and
extension was to 25 degrees. No ankylosis was noted. The
examiner stated that the veteran's chronic pain syndrome
allowed him to continue employment and most of his daily
activities except for prolonged heavy yard work. The
examiner characterized the limitation of motion of the
thoracic and cervical spine and being slight in degree. It
was noted that he would be totally incapacitated for 20
minutes periodically when his back locks up about every two
weeks. The veteran did not have weakened movement, but had
excess fatigability when lifting 25 pounds repetitively.
The report of an MRI of the veteran's spine from Open MRI of
Ashville dated in February 2003 reflects that the impression
was (1) chronic compression fractures with mild loss of
vertebral height at T7, T8, T9 and T10; and (2) mild
degenerative disc disease most apparent from T7 to T10
associated with broad based disc annulus bulges.
A nerve conduction study report from the Parkton Family
Medical Center dated in April 2005 reflects that
electrophysiological testing was interpreted as being
consistent with nerve root irritation of the C5, C6, and C7
nerve roots that was radiculopathic in nature.
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity in civil occupations. See 38 U.S.C.A.
§ 1155. Separate diagnostic codes identify the various
disabilities.
The assignment of a particular Diagnostic Code is dependent
on the facts of a particular case. See Butts v. Brown, 5
Vet. App. 532, 538 (1993). One Diagnostic Code may be more
appropriate than another based on such factors as an
individual's relevant medical history, the current diagnosis,
and demonstrated symptomatology. In reviewing the claim for
a higher rating, the Board must consider which Diagnostic
Code or Codes are most appropriate for application in the
veteran's case and provide an explanation for the conclusion.
See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).
Under the old regulations, effective prior to September 26,
2003, and in effect at the time the veteran filed his claim,
a thoracic spine disability could be rated under Diagnostic
Code 5291 which provides that a 10 percent rating is
warranted for limitation of motion of the dorsal spine which
is moderate or severe in degree. Alternatively, under
Diagnostic Code 5288, a 20 percent rating is warranted if
there is favorable ankylosis of the dorsal spine. A 30
percent rating is warranted for unfavorable ankylosis of the
dorsal spine.
The Court has emphasized that when assigning a disability
rating, it is necessary to consider functional loss due to
flare-ups, fatigability, incoordination, and pain on
movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7
(1995). The rating for an orthopedic disorder should reflect
any functional limitation that is due to pain that is
supported by adequate pathology and evidenced by the visible
behavior of the claimant undertaking the motion. Weakness is
also as important as limitation of motion, and a part that
becomes painful on use must be regarded as seriously
disabled. 38 C.F.R. § 4.40. The factors of disability
reside in reductions of their normal excursion of movements
in different planes. Instability of station, disturbance of
locomotion, and interference with sitting, standing, and
weight bearing are related considerations. 38 C.F.R. § 4.45.
It is the intention of the rating schedule to recognize
actually painful, unstable, or malaligned joints, due to
healed injury, as entitled to at least the minimal
compensable rating for the joint. 38 C.F.R. § 4.59. Within
this context, a finding of functional loss due to pain must
be supported by adequate pathology and evidenced by the
visible behavior of the claimant. Johnston v. Brown, 10 Vet.
App. 80, 85 (1997).
The Board notes, however, that the Court has held that
section 4.40 does not require a separate rating for pain but
rather provides guidance for determining ratings under other
diagnostic codes assessing musculoskeletal function. See
Spurgeon v. Brown, 10 Vet. App. 194 (1997).
During the pendency of the veteran's claim and appeal, the
rating criteria for evaluating intervertebral disc syndrome
were amended. See 38 C.F.R. § 4.71a, Diagnostic Code 5293
(2003), effective September 23, 2002. See 67 Fed. Reg.
54,345-49 (Aug. 22, 2002). In 2003, further amendments were
made for evaluating disabilities of the spine. See 68 Fed.
Reg. 51,454-58 (Aug. 27, 2003) (codified at 38 C.F.R. §
4.71a, Diagnostic Codes 5235 to 5243 (2004)). An omission
was then corrected by reinserting two missing notes. See 69
Fed. Reg. 32,449 (June 10, 2004). The latter amendment and
subsequent correction were made effective from September 26,
2003.
Where a law or regulation (particularly those pertaining to
the Rating Schedule) changes after a claim has been filed,
but before the administrative and/or appeal process has been
concluded, both the old and new versions must be considered.
See VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000
(Apr. 10, 2000). The effective date rule established by 38
U.S.C.A. § 5110(g) (West 2002), however, prohibits the
application of any liberalizing rule to a claim prior to the
effective date of such law or regulation. See Rhodan v.
West, 12 Vet. App. 55 (1998), appeal dismissed, No. 99-7041
(Fed. Cir. Oct. 28, 1999) (unpublished opinion) (VA may not
apply revised schedular criteria to a claim prior to the
effective date of the pertinent amended regulations).
Accordingly, the Board will review the disability rating
under the old and new criteria. The RO evaluated the
veteran's claim under the old regulations in making its
rating decisions.
As was noted above, the VA issued revised regulations
concerning the sections of the rating schedule that deal with
intervertebral disc syndrome. 67 Fed. Reg. 54345-54349
(August 22, 2002). The revised criteria contain a Formula
for Rating Intervertebral Disc Syndrome Based on
Incapacitating Episodes. However, the veteran is not
diagnosed with Intervertebral Disc syndrome, and his
neurological examinations have been generally normal.
Therefore, the criteria for rating intervertebral disc
syndrome are not applicable.
The Board also notes that for spine disorders that are not
rated under the code for intervertebral disc syndrome, there
is a new General Rating Formula for Diseases and Injuries of
the Spine. 68 Fed. Reg. 51454-51458 (August 27, 2003). The
General Rating Formula for Diseases and Injuries of the
Spine (For diagnostic codes 5235 to 5243 unless 5243 is
evaluated under the Formula for Rating Intervertebral Disc
Syndrome Based on Incapacitating Episodes) provides as
follows:
With or without symptoms such as pain (whether or not it
radiates), stiffness, or aching in the area of the spine
affected by residuals of injury or disease
Unfavorable ankylosis of the entire spine................100
Unfavorable ankylosis of the entire thoracolumbar
spine.............50
Unfavorable ankylosis of the entire cervical spine; or,
forward flexion of the thoracolumbar spine 30 degrees or
less; or, favorable ankylosis of the entire thoracolumbar
spine................40
Forward flexion of the cervical spine 15 degrees or less;
or, favorable ankylosis of the entire cervical
spine....................30
Forward flexion of the thoracolumbar spine greater than 30
degrees but not greater than 60 degrees; or, forward flexion
of the cervical spine greater than 15 degrees but not
greater than 30 degrees; or, the combined range of motion of
the thoracolumbar spine not greater than 120 degrees; or,
the combined range of motion of the cervical spine not
greater than 170 degrees; or, muscle spasm or guarding
severe enough to result in an abnormal gait or abnormal
spinal contour such as scoliosis, reversed lordosis, or
abnormal kyphosis................20
Forward flexion of the thoracolumbar spine greater than 60
degrees but not greater than 85 degrees; or, forward flexion
of the cervical spine greater than 30 degrees but not
greater than 40 degrees; or, combined range of motion of the
thoracolumbar spine greater than 120 degrees but not greater
than 235 degrees; or, combined range of motion of the
cervical spine greater than 170 degrees but not greater than
335 degrees; or, muscle spasm, guarding, or localized
tenderness not resulting in abnormal gait or abnormal spinal
contour; or, vertebral body fracture with loss of 50 percent
or more of the height................10
Note (1): Evaluate any associated objective neurologic
abnormalities, including, but not limited to, bowel or
bladder impairment, separately, under an appropriate
diagnostic code.
Note (2): (See also Plate V.) For VA compensation purposes,
normal forward flexion of the cervical spine is zero to 45
degrees, extension is zero to 45 degrees, left and right
lateral flexion are zero to 45 degrees, and left and right
lateral rotation are zero to 80 degrees. Normal forward
flexion of the thoracolumbar spine is zero to 90 degrees,
extension is zero to 30 degrees, left and right lateral
flexion are zero to 30 degrees, and left and right lateral
rotation are zero to 30 degrees. The combined range of
motion refers to the sum of the range of forward flexion,
extension, left and right lateral flexion, and left and
right rotation. The normal combined range of motion of the
cervical spine is 340 degrees and of the thoracolumbar spine
is 240 degrees. The normal ranges of motion for each
component of spinal motion provided in this note are the
maximum that can be used for calculation of the combined
range of motion.
Note (3): In exceptional cases, an examiner may state that
because of age, body habitus, neurologic disease, or other
factors not the result of disease or injury of the spine,
the range of motion of the spine in a particular individual
should be considered normal for that individual, even though
it does not conform to the normal range of motion stated in
Note (2). Provided that the examiner supplies an
explanation, the examiner's assessment that the range of
motion is normal for that individual will be accepted.
Note (4): Round each range of motion measurement to the
nearest five degrees.
Note (5): For VA compensation purposes, unfavorable
ankylosis is a condition in which the entire cervical spine,
the entire thoracolumbar spine, or the entire spine is fixed
in flexion or extension, and the ankylosis results in one or
more of the following: difficulty walking because of a
limited line of vision; restricted opening of the mouth and
chewing; breathing limited to diaphragmatic respiration;
gastrointestinal symptoms due to pressure of the costal
margin on the abdomen; dyspnea or dysphagia; atlantoaxial or
cervical subluxation or dislocation; or neurologic symptoms
due to nerve root stretching. Fixation of a spinal segment
in neutral position (zero degrees) always represents
favorable ankylosis.
Note (6): Separately evaluate disability of the
thoracolumbar and cervical spine segments, except when there
is unfavorable ankylosis of both segments, which will be
rated as a single disability.
(The above criteria clearly imply that the factors for
consideration under the holding in DeLuca v. Brown, infra,
are now contemplated in the rating assigned under the general
rating formula.)
After reviewing all of the evidence which is of record, the
Board finds that a higher rating is not warranted under
either the old or the new rating criteria. The thoracic
spine fracture residuals have not resulted in unfavorable
ankylosis, intervertebral disc syndrome, or limitation of
motion with forward flexion of the thoracolumbar spine 30
degrees or less; or, favorable ankylosis of the entire
thoracolumbar spine. In this regard, the Board notes that
none of the medical evidence which is of record contains a
diagnosis of ankylosis, either favorable or unfavorable. In
addition, testing has repeatedly shown that the motion of the
thoracolumbar spine exceeds 30 degrees by a wide margin. For
example, on VA examination in January 2003, the range of
flexion was to 75 degrees. Accordingly, the Board concludes
that the criteria for a disability rating higher than 20
percent for thoracic spine fracture residuals are not met.
III. Entitlement To A Higher Initial Rating For Cervical
Spine Injury Residuals, Rated As Noncompensable Prior To
January 30 2003,
And Rated As 10 Percent Thereafter.
Under the old regulations, effective prior to September 26,
2003, a cervical spine disability could be rated under
Diagnostic Code 5290 which provides that a 10 percent rating
is warranted for limitation of motion of the cervical spine
which is slight in degree. A 20 percent rating is warranted
for moderate limitation of motion. A 30 percent rating is
warranted if the limitation of motion is severe. A 30 or 40
percent rating may be assigned under Diagnostic Code 5287 if
there is favorable or unfavorable ankylosis of the cervical
spine. Under 38 C.F.R. § 4.31, however, a zero percent
rating shall be assigned when the requirements for a
compensable evaluation are not met.
After reviewing all of the evidence which is of record and is
summarized above, the Board finds that a higher rating is not
warranted under either the old or the new rating criteria.
During the period prior to January 30, 2003, the cervical
spine injury residuals did not result in limitation of
motion. This is demonstrated by the May 1996 VA examination
noting normal range of motion in the neck, the VA examination
in February 1997 noting that range of motion of the cervical
spine was completely within normal limits, and the QTC
examination in May 2000 which noted that his cervical spine
had a full painless range of motion. During the period from
January 30, 2003, the cervical spine injury residuals have
not resulted in limitation of motion which is more than
slight in degree, or limitation of forward flexion of the
cervical spine to 30 degrees or less. On the January 2003
VA examination, flexion of the cervical spine was to 65
degrees. Accordingly, the Board concludes that the criteria
for a compensable disability rating for the period prior to
January 30, 2003, or a disability rating higher than 10
percent for the period from that date for cervical spine
injury residuals are not met.
ORDER
1. The veteran did not submit a timely appeal of the
decision of which assigned the initial rating for a service-
connected left knee disorder. The appeal is dismissed.
2. An initial rating higher than 20 percent for thoracic
spine fracture residuals is denied.
3. A higher initial rating for cervical spine injury
residuals, rated as noncompensable prior to January 30 2003,
and rated as 10 percent thereafter, is denied.
______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs